176 U.S.

646
20 S.Ct. 509
44 L.Ed. 622

ILLINOIS CENTRAL RAILROAD COMPANY, Plff. in Err.,

v.
CITY OF CHICAGO.
No. 114.
Argued January 24, 25, 1900.
Decided March 12, 1900.

This was a bill in equity instituted by the Illinois Central Railroad

Company in the superior court of Cook county, to obtain an injunction
restraining the city of Chicago from interfering with the exercise of the
right of the railroad company to fill in, for railroad purposes, certain lands
submerged by the shallow waters of Lake Michigan in front of property
owned by the railroad company, in fee, and situated between Twenty-fifth
and Twenty-seventh streets in said city. The purpose of the railroad
company in reclaiming the land was to erect thereon an engine house and
locomotive stalls necessary to the operation of the road.
The case was heard upon bill, answer, cross bill, and demurrer to cross
bill, in which were set forth substantially the following facts, as recited in
the opinion of the supreme court (173 Ill. 471, 50 N. E. 1104):
By an act of Congress approved September 20, 1850 (9 Stat. at L. 466,
chap. 61), 'the right of way through the public lands be . . . granted to the
state of Illinois for the construction of a railroad from the southern
terminus of the Illinois & Michigan Canal to a point at or near the junction
of the Ohio and Mississippi rivers, with a branch of the same to Chicago,
on Lake Michigan, and another via the town of Galena, in said state, to
Dubuque, in the state of Iowa, with the right, also, to take the necessary
materials, of earth, stones, timber, etc., for the construction' of the
railroad. The act also granted to the state of Illinois, for the purpose of
aiding and making the railroad and branches above named, every alternate
section of land designated by even numbers, for six sections in width, on
each side of the railroad and branches. By the act it was further provided
that the railroad and branches should be and forever remain a public

highway for the use of the government of the United States, free from toll
or other charge upon the transportation of any property or troops of the
United States.
The company was created, organized under, and now exists by virtue of,
an act of the legislature of the state of Illinois approved February 10,
1851, entitled 'An Act to Incorporate the Illinois Central Railroad
Company' (Private Laws of 1851, p. 61), and by its charter it was
authorized to survey, locate, construct, complete, alter, maintain, and
operate a railroad, with one or more tracks or lines of rail, from the
southern terminus of the Illinois & Michigan Canal, to a point at or near
the junction of the Ohio and Mississippi rivers, with a branch of the same
into Chicago, on Lake Michigan, and also a branch via the city of Galena
to a point on the Mississippi river opposite the town of Dubuque, in the
state of Iowa. By 3 of its charter it was provided as follows: 'The said
corporation shall have right of way upon, and may appropriate to its sole
use and control for the purposes contemplated herein, land not exceeding
200 feet in width through its entire length; may enter upon and take
possession of and use all and singular any lands, streams, and materials of
every kind, for the location of depots and stopping stages, for the purpose
of constructing bridges, dams, embankments, excavations, station
grounds, spoil banks, turnouts, engine houses, shops, and other buildings
necessary for the construction, completing, altering, maintaining,
preserving, and complete operation of said road. All such lands, waters,
materials, and privileges belonging to the state are hereby granted to said
corporation for said purposes; but when owned or belonging to any
person, company, or corporation, and cannot be obtained by voluntary
grant or release, the same may be taken and paid for, if any damages are
awarded, in the manner provided in 'An Act to Provide for a General
System of Railroad Incorporations,' approved November 5, 1849, and the
final decision or award shall vest in the corporation hereby created all the
rights, franchises, and immunities in said act contemplated and provided; .
. . Provided, that nothing in this section contained shall be so construed as
to authorize the said corporation to interrupt the navigation of said
streams.'
The bill also avers that the company constructed its line of railroad within
the then limits of the city of Chicago in the year 1852, and completed its
railroad between the termini named in its charter, in the state of Illinois, in
the year 1857; that the total number of miles of its railroad in the state,
upon completion, was 706; that at the time of the construction of its
railroad, in 1852, into the city of Chicago, the southern limits and
boundary of the city extended only to Twenty-second street; that in 1852 it

constructed its line of railroad immediately along the shore and partly
over the shallow waters of Lake Michigan from Fifty-first street to
Twenty-second street, then the southern boundary of the city, and that its
railroad was constructed into the city of Chicago through the waters of
Lake Michigan, pursuant to an ordinance of the city; that its railroad
within the limits of the city was constructed on piling set in the open
waters of Lake Michigan east of the shore; that between Park Row and
Randolph street the distances in a direct east and west line between the
shore line and the inner or west line of the piling on which the railroad of
the company was constructed through the open waters of Lake Michigan
varied from 5 feet at Park Row to 310 feet at Madison street, and that the
depth of the water along the line of piling between the points above
named varied from 2 1/2 to 9 1/2 feet; that the company now owns or
controls by lease, and is now operating under one management, the whole
of the trunk line as one continuous line from New Orleans, through the
states of Louisiana, Mississippi, Tennessee, Kentucky, and Illinois, into
the city of Chicago; that it controls, by lease or otherwise, under the same
management, many other lateral lines in the states above named, and also
in the states of Wisconsin, Iowa, Minnesota, and Dakota, which connect
with and are tributary to the parent line of the company; that the number
of miles now owned or controlled by the company under one management
exceeds 4,600.
It is further alleged in the bill that the city of Chicago is the business
center of the various lines which constitute the system owned by the
company; that the business carried on over the terminal tracks and
facilities of the company within the present limits of the city of Chicago is
so great and so constantly increasing that the whole of its right of way and
lands contiguous thereto, within said limits, are used to their utmost
capacity as yards, shops, depot grounds, side tracks, switching tracks,
storage tracks, delivery tracks, team tracks, and other structures, all of
which are absolutely necessary as terminal facilities to enable the
company to carry on and conduct its business as a common carrier of
freight and passengers, and that all the tracks, structures, and appliances of
its terminal facilities are necessary and essential to enable the company to
carry on its business; that the business of the company as a common
carrier greatly increases from year to year, and that it has so continued to
increase that its terminal facilities in the city are not wholly adequate for
the purposes and uses prescribed and intended by its charter. The bill sets
out in detail its business and its increase from year to year, and alleges that
its terminal facilities in the city of Chicago have been found to be wholly
inadequate to enable the company to carry on its business; that in order to
meet the increased business necessities and requirements of the company

it is absolutely necessary that the company should construct, operate, and

use an engine house 316 feet in diameter, and containing forty stalls,
together with a machine shop, turn table, coal chute, and other structures;
that it has no engine house whatever at which it is practicable for its
engines to be overhauled and fitted for operation; that it has no land
whatever unoccupied by other necessary tracks and structures, which is
either sufficient in dimensions or suitably located, upon which to locate
and construct an engine house of the necessary dimensions and capacity,
with the necessary appurtenances thereto, required and necessary for the
business of the company, and that in order to build such engine house and
the appurtenances it is necessary to construct the same upon land covered
by the shallow waters of Lake Michigan, at a point between Fifty-first
street and Eighteenth street.
It is also set up in the bill that, in 1852, at the time of the construction of
the road within the city of Chicago, it purchased certain lands lying
between Twenty-fifth and Twenty-seventh streets, bordering on the shore
of Lake Michigan; that in the deeds the shore of Lake Michigan was
designated as the east boundary line thereof, and that the company, as
owner, was vested with all the riparian rights and privileges incident to the
ownership in fee of the shore land; that in the year 1882 it constructed a
breakwater or bulkhead in the shallow waters of Lake Michigan, the same
being located and constructed in front of the land which the company
purchased in 1852, above referred to, the east and west line of the
breakwater on the north extending from a point on the shore continuous
with the northern boundary of the land conveyed to the company in 1852,
and extending to a point 200 feet easterly from the shore line, running
thence southerly a distance of 781 feet, and thence westerly to the shore
line, a distance of 325 feet; that the breakwater built by the company in
1882 was constructed on two rows of piling driven into the bed of Lake
Michigan, and the space between the rows of piling was filled in with
stone, in order to strengthen the breakwater and enable it to withstand the
force of Lake Michigan during periods of storm; that all the shore land
embraced within the lines of the breakwater now is, and ever since the
year of 1852 has been, owned in fee simple by the company, and that it is
entitled to all the riparian rights and privileges incident to the ownership
in fee of the shore land; that the superficial area of the land covered by the
shallow waters of Lake Michigan lying within the lines of the breakwater
and the shore line of Lake Michigan is 195,200 square feet, or 4.48 acres;
that the superficial area of the ground necessary for the construction of the
engine house, machine shop, coal chute, and other necessary structures
appurtenant thereto is 168,426.9 square feet, or 3.86 acres.

The bill further states that in the year 1894 a part of the breakwater
referred to as having been constructed by it in the year 1882 was
destroyed by a storm on Lake Michigan; that it being necessary, to enable
the company to carry on and conduct its business, that an engine house, of
sufficient capacity to meet its necessary requirements and demands in
conducting its business and to accomplish the objects for which the
company was chartered, be constructed and erected at a reasonably
suitable and proper location, and it being necessary that such engine house
should be erected and constructed upon the lands submerged by the
shallow waters of Lake Michigan lying in front of land on the shore of
Lake Michigan owned in fee simple by the company, the company caused
plans to be made, as before stated, for an engine house 316 feet in
diameter, and containing forty stalls or compartments, and under the
power, authority, and right given and vested in the company by its charter,
and in the exercise of its rights as riparian owner, it elected and
determined to locate and construct said engine house on land submerged
by the shallow waters of Lake Michigan lying within the limits of the
breakwater, and to repair the breakwater, and fill in the submerged lands
lying within the limits of the breakwater, for the purpose of constructing
thereon said engine house and the necessary appurtenances thereto; that
the breakwater does not in any way interfere with the navigation of Lake
Michigan; that the Secretary of War gave his consent to the repair of the
breakwater; that the commissioner of public works of the city of Chicago
also gave his consent to the repair; that the company placed upon the
ground large quantities of material for repairing the breakwater, the filling
in of the lands covered by the shallow waters of Lake Michigan embraced
within the lines thereof, and for the construction of the engine house and
appurtenances thereto on the lands to be filled in; that it repaired the
breakwater by driving two rows of piling, and filled in a large part of the
space between the exterior and interior line of piling with stone, for the
purpose of enabling the breakwater to withstand the force of Lake
Michigan; that the company was prevented by the police force of the city
of Chicago, acting under the orders and direction of the mayor, from
completing the work; that the city of Chicago, without right or authority,
interferes with and prevents the company from filling in the lands within
the lines of such breakwater.
The answer of the city set up its charter and authority under an act of the
general assembly of the state of Illinois, entitled 'An Act to Provide for the
Incorporation of Cities and Villages (Approved April 10, 1872, in Force
July 1, 1872),' and the several acts amendatory thereof and supplementary
thereto, and that, among other things, it was 'empowered to regulate and
control the use of public landing places for docks and levees; to control

and regulate the anchorage, moorage, and landing of all water crafts and
their cargoes; to make regulations in regard to the use of harbors, and to
appoint harbor masters and define their duties, and that in the exercise of
such power this defendant has, through its police power, prevented the
said complainant hitherto from filling up the said lake and intruding upon
the navigable waters thereof, and that all the acts and doings complained
of as done and performed by this defendant, its officers, agents, and
employees, have been done strictly in the line of its duty in that behalf for
the purpose of protecting its own rights and the rights of the public
generally, in the premises, so as to prevent obstructions in the harbor and
the seizure and appropriation by the complainant of the bed and navigable
waters of the said lake;' and also pleaded the decision of this court in
Illinois C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup. Ct.
Rep. 110, as res judicata of all the questions in controversy. The cross bill
prayed a counter injunction against any interference by the railroad
company.
Upon a hearing upon these pleadings the superior court denied the
injunction demanded by the railroad company and dismissed its bill. On
appeal the supreme court affirmed this decree. 173 Ill. 471, 50 N. E. 1104.
Whereupon the railroad company sued out a writ of error from this court.
Messrs. William D. Guthrie, Benjamin F. Ayer, and James Fentress for
plaintiff in error.
Messrs. Granville W. Browning and Charles M. Walker for defendant in
error.
Mr. Justice Brown delivered the opinion of the court:

The supreme court of Illinois disposed of this case upon two grounds: (1) That
the power given by the charter of the Illinois Central Railroad Company of
February 10, 1851, to 'enter upon and take possession of and use all and
singular any lands, streams, and materials of every kind, for the location of
depots and stopping stages for the . . . complete operation of said road,' and the
grant to said corporation of 'all such lands, waters, materials, and privileges
belonging to the state,' did not include lands covered by the waters of Lake
Michigan. (2) That, even if the grant were broad enough to include the waters
of the lake, it did not follow that the railroad company would have the right, at
any time it might see proper, to take and appropriate to itself any of the lands
covered by such waters, provided only that the navigation of the lake was not
interfered with.

1. The ultimate jurisdiction of this court is invoked by the allegation of the bill
that the above provision of the railway's charter was and is an irrevocable
contract between the state of Illinois and the complainant, conferring upon it 'a
vested and continuing right to use the shallow waters and submerged lands of
Lake Michigan for such purposes, when such use is reasonably necessary for
the business of your orator; provided, that the same does not interfere with the
navigation of the lake, having reference to the manner in which commerce is
conducted thereon;' and that 'any law of the state of Illinois, or any judgment,
decree, or decision of any court or tribunal thereof, which denies or in any way
impairs its right to use the submerged land of Lake Michigan for the purpose of
constructing and using engine houses, shops, and other buildings thereon, etc.,
impairs the obligation of the contract created by said charter,' ect.

The answer of the city avers that, under an act of the general assembly of the
state, approved April 10, 1872, it was empowered 'to regulate and control the
use of public landing places for docks and levees; to control and regulate the
anchorage, moorage, and landing of all water crafts and their cargoes; to make
regulations in regard to the use of harbors, and to appoint harbor masters and
define their duties, and that in the exercise of such power this defendant has,
through its police power, prevented the said complainant hitherto from filling
up the said lake and intruding upon the navigable waters thereof;' and that the
city was also empowered to regulate its police and pass and enforce all
necessary police ordinances; and that in pursuance of this authority the city
council made and established an ordinance (793) that 'no person or persons
shall drive or place or caused to be driven or placed any pile or piles, stone,
timbers, earth, or other obstruction in the harbor of the city without the
permission of the commissioner of public works,' etc.

This was the only authority claimed in the answer, but as all this legislation was
subsequent to the charter of the railroad company, the city now sets up in
support of its motion, to dismiss for want of a Federal question that it was
provided in 8 of the railroad's charter of 1851 that 'nothing in this act
contained shall authorize said corporation to make a location of their track
within any city, without the consent of the common council of said city,' and
that this section operates as a restriction upon the power of the railroad to locate
its track, or other structures, depots, engine houses, or otherwise, over any lands
contiguous to the city under Lake Michigan, or any other public property over
which the police power of the city extends.

It is also insisted that the city had, in 1851, even greater powers over the
submerged lands on its lake front under its charter than it has now; but the only
support for this contention lies in an amended charter of the city of Chicago,

passed February 14, 1851, four days after the charter of the Illinois Central
Railroad Company was adopted. As this was a subsequent act, it is impossible
to argue from it that the police power of the city at the date of the charter was
as ample as that conferred by the act of April 10, 1872, set up in the answer.
The extract to which attention is called by counsel from the opinion of the
supreme court of Illinois in Illinois C. R. Co. v. Rucker, 14 Ill. 353, 356, to the
effect that under the charter of the city of Chicago the common council was
empowered to regulate, control, and protect the bed and waters of the lake as a
part of the city of Chicago, may have been, and probably was, based upon the
act of February 14, 1851, and, in any event, is too indefinite to be made the
basis of any adjudication as to the power of the common council.
6

We have examined the first charter of the city of Chicago, adopted March 14,
1837, and the amendments thereto, down to the charter of February 14, 1851,
and find nothing prior to the last-mentioned date defining the powers of the
common council over the waters of Lake Michigan adjacent to the city, or
anything from which it can be argued that the authority of the common council,
with respect to the harbor and adjacent waters, was as ample as that conferred
by the acts of the general assembly subsequent to the chartering of the railroad
company.

The question then is reduced to this: Giving to the charter of the railroad
company the broadest construction claimed by it (and, in determining the
existence of a Federal question, we are bound to do this), may it not be
reasonably insisted that, under the act of 1872 and ordinance No. 793, that 'no
person or persons shall drive or place or caused to be driven or placed any pile
or piles, stone, timbers, earth, or other obstruction in the harbor of the city
without the permission of the commissioner of public works,' the right of the
railroad company 'to enter upon and take possession of and use all and singular
lands, streams, and materials of every kind for the complete operation of the
road,' is impaired? We think it may. Without determining the effect of such
ordinance, the question whether it impairs the charter of the company, giving to
that charter a broad construction, is fairly open to contention. Bacon v. Texas,
163 U. S. 207, 216, 41 L. ed. 132, 136, 16 Sup. Ct. Rep. 1023; Walla Walla v.
Walla Walla Water Co. 172 U. S. 5, 10, 43 L. ed. 342, 345, 19 Sup. Ct. Rep.
77. The claim is certainly not a frivolous one. In determining the existence of a
Federal question it is only necessary to show that it is set up in good faith and is
not wholly destitute of merit. Said Chief Justice Chase in Millingar v.
Hartupee, 6 Wall. 258, 261, 18 L. ed. 829, speaking of the validity of an
authority exercised under the United States: 'Something more than a bare
assertion of such authority seems essential to the jurisdiction of this court. The
authority intended by the act is one having a real existence, derived from

competent governmental power. If a different construction had been intended,

Congress would doubtless have used fitting words. The act would have given
jurisdiction in cases of decisions against claims of authority under the United
States. . . . If a right were claimed under a treaty or statute, and on looking into
the record it should appear that no such treaty or statute existed or was in force,
it would hardly be insisted that this court could review the decision of a state
court that the right claimed did not exist.' So, in New Orleans v. New Orleans
Waterworks Co. 142 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Rep. 142, we held that
the bare averment of a Federal question is not always sufficient; that such
averment must not be wholly without foundation, since if it were otherwise a
Federal question might be set up in almost every case, and the jurisdiction of
this court invoked simply for the purpose of delay.
8

But as we are of opinion that the Federal question in this case was properly set
up in the record, and is not destitute of merit, the motion to dismiss must be
denied.

2. Upon the merits, the case turns upon the proper construction of the charter of
the Illinois Central Railroad Company, granted by the general assembly
February 10, 1851. As was said in the case just decided of Walsh v. Columbus,
H. Valley & A. R. Co. 176 U. S. 469, 20 Sup. Ct. Rep. 393, 44 L. ed. , and
the prior cases therein cited, whenever a contract created by a state statute is
alleged to have been impaired by subsequent legislation, it is for this court to
determine the proper construction of such statute, as well as the question
whether the subsequent legislation has impaired it.

10

The sections of the charter upon which the railroad company relies for taking
possession of this property, so far as the same are pertinent to this case, are as
follows:

11

'Sec. 3. The said corporation shall have right of way upon, and may appropriate
to its sole use and control, for the purposes contemplated herein, land not
exceeding 200 feet in width through its entire length; may enter upon and take
possession of and use all and singular any lands, streams, and materials of
every kind, for the location of depots and stopping stages, for the purpose of
constructing bridges, dams, embankments, excavations, station grounds, spoil
banks, turnouts, engine houses, shops, and other buildings necessary for the
construction, completing, altering, maintaining, preserving, and complete
operation of said road. All such lands, waters, materials, and privileges
belonging to the state are hereby granted to said corporation for said
purposes; but when owned or belonging to any person, company, or
corporation, and cannot be obtained by voluntary grant or release, the same

may be taken and paid for, if any damages are awarded, in the manner provided
in 'An Act to Provide for a General System of Railroad Incorporation,'
approved November fifth, one thousand eight hundred and forty-nine; and the
final decision or award shall vest in the corporation hereby created all the
rights, franchises, and immunities in said act contemplated and provided; . . .
Provided, that nothing in this section contained shall be so construed as to
authorize the said corporation to interrupt the navigation of said streams.'
12

'Sec. 8. . . . Nothing in this act contained shall authorize said corporation to

make a location of their track within any city, without the consent of the
common council of said city.'

13

'Sec. 10. Said corporation may construct their said road and branches over or
across any stream of water, watercourse, road, highway, railroad, or canal,
which the route of its road shall intersect, but the corporation shall restore the
stream or watercourse, road or highway, thus intersected, to its former state, or
in a sufficient manner not to have impaired its usefulness. . . .'

14

'Sec. 15. . . . Third. That said company shall proceed to locate, survey, and lay
out, construct, and complete said road and branches, through the entire length
thereof, . . . with a branch also diverging from the main track at a point not
north of the parallel of thirty-nine and a half degrees north latitude, and running
on the most eligible route into the city of Chicago, on Lake Michigan. That the
central road or main track shall be completed, with at least one line of rails, or
single track, with the necessary turnouts, stations, equipments, and furnishings,
within four years from the date of the execution of said deed of trust, and the
branches within six years from the said date.'

15

The position of the railroad company under these sections, presupposing as it

does a vested, continuing, and irrevocable right for all time, to use such of the
shallow waters and submerged lands of Lake Michigan as it may now or
hereafter find to be necessary to the proper and complete operation of its road,
and a surrender by the city of all power of interference, is certainly a somewhat
startling one. It is no matter of surprise that the magnitude of the claim should
have at once aroused the authorities of the city to inquire into its soundness.

16

Under the law of the state of Illinois, as laid down by the supreme court, not
only in the case under consideration, but in the prior case of People ex rel.
Moloney v. Kirk, 162 Ill. 146, 45 N. E. 830, 'the state holds the title to the lands
covered by the waters of Lake Michigan lying within its boundaries, but it
holds the title in trust for the people, for the purposes of navigation and fishery.

The state has no power to barter and sell the lands as the United States sells its
public lands, but the state holds the title in trust in its sovereign capacity, for the
people of the entire state.' Such was also the ruling of this court in a case
between the same parties (illinoIs c. r. CO. V. illinoIs 146 u. s. 387, 36 L. ED.
1018, 13 sup. Ct. Rep. 110, Affirming Illinois C. R. Co. v. Illinois, 33 Fed. Rep.
730). This, too, is a question of local law with regard to which the decisions of
the state courts are conclusive. Packer v. Bird, 137 U. S. 661, 34 L. ed. 819, 11
Sup. Ct. Rep. 21; Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct.
Rep. 808, 838.
17

But we are now asked to say that, not the state, but a railway company, is
vested with a power which, in the course of time and in the increasing
magnitude of its business, may enable it to do, by indirection or piecemeal,
what it has been held the state could not do directlytake the whole water
front of the city to the limit of navigation for the operation of the road, and that,
too, without the consent and against the protest of the city. If such authority be
possible, it should be granted in the clearest and most unmistakable language.

18

But on examining 3 of the charterthe source of this almost unlimited power

we find that, so far from its being conferred in precise and definite words, the
implication is clearly against the power claimed. In fact, it is only by a strained
and unnatural construction that any intention on the part of the legislature to
abdicate its authority over the submerged lands of Lake Michigan can be raised.

19

Referring to the particular language of the grant in that section, it is manifest

that such authority must arise either from the right given 'to enter upon and take
possession of and use all and singular any lands, streams, and materials of
every kind,' etc., or from the grant of 'all such lands, waters, materials, and
privileges belonging to the state.' We do not question the general principle that
the word 'lands' includes everything which the land carries or which stands
upon it, whether it be natural timber, artificial structures, or water, and that an
ordinary grant of land by metes and bounds carries all pools and ponds, nonnavigable rivers, and waters of every description by which such lands, or any
portion of them, may be submerged, since, as was said by the court in Queen v.
Leeds & L. Canal Co. 7 Ad. & El. 671, 685: 'Lands are not the less land for
being covered with water.' See also Brocket v. Ohio & P. R. Co. 14 Pa. 241;
Beckman v. Kreamer, 43 Ill. 447, 92 Am. Dec. 146; Hooker v. Cummings, 20
Johns. 90, 11 Am. Dec. 249; State v. Pottmeyer, 33 Ind. 402, 5 Am. Rep. 224;
King v. Wharton, Holt, 499; Buckingham v. Smith, 10 Ohio, 288; Mill River
Woolen Mfg. co. v. Smith, 34 Conn. 462; Waters v. Lilley, 4 Pick. 145, 16 Am.
Dec. 333; Washington Ice. Co. v. Shortall, 101 Ill. 46, 40 Am. Rep. 196.

20

But it is equally well settled that, in the absence of any local statute or usage, a
grant of lands by the state does not pass title to submerged lands below highwater mark (Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Goodtitle ex dem.
Pollard v. Kibbe, 9 How. 471, 13 L. ed. 220; United States v. Pacheco, 2 Wall.
587, 17 L. ed. 865; Weber v. State Harbor Comrs. 18 Wall. 57, 21 L. ed. 798;
Hardin v. Jordan, 140 U. S. 371, 381, 35 L. ed. 428, 433, 11 Sup. Ct. Rep. 808,
838; Shively v. Bowlby, 152 U. S. 1, 13, 38 L. ed. 331, 336, 14 Sup. Ct. Rep.
548), and that this principle also applies to the Great Lakes. Illinois C. R. Co. v.
Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup. Ct. Rep. 110; Hardin v. Jordan,
140 U. S. 371, 382, 35 L. ed. 428, 433, 11 Sup. Ct. Rep. 808, 838; Seaman v.
Smith, 24 Ill. 521; People ex rel. Moloney v. Kirk, 162 Ill. 138, 146, 45 N. E.
830; Revell v. People, 177 Ill. 479, 43 L. R. A. 790, 52 N. E. 1052.

21

It is true, as was said by the court in Shively v. Bowlby, 152 U. S. 1, 13, 38 L.

ed. 331, 336, 14 Sup. Ct. Rep. 548, that if either the language of the grant or
long usage under it clearly indicates an intention that waters submerged by the
sea shall be included, it is within the power of the sovereign to grant them. But
we know of nothing in the way of constant usage with regard to these
submerged waters which lends support to the argument of the railroad company
that this case is within the exception, and not within the general principle, of
Shively v. Bowlby. To make usage significant of the proper interpretation of the
grant, it should appear that it was a usage for the railroad company to
appropriate such lands without the express consent of the city, but with its
silent acquiescence. Undoubtedly such usage might be inferred from repeated
appropriations by the railroad without objection from the city authorities. But
the facts seem to be that, wherever the railroad has taken such lands, it has done
so with the express consent or subsequent ratification of the state or city. Thus,
the railroad originally entered the city under an ordinance adopted June 14,
1852, giving it the right 'to enter said city at or near the intersection of its
southern boundary with Lake Michigan, and following the shore on or near the
margin of said lake northerly to the southern bounds of the open space known
as Lake Park, in front of canal section 15, and continue northerly across the
open space in front of said section 15 to such grounds as the said company may
acquire between the north line of Randolph street and the Chicago river, . . .
upon which said ground shall be located the depot of said railroad,' and express
permission was given in 3 of this ordinance to extend the railroad company's
works and 'fill out into the lake to a point on the southern pier not less than 400
feet west from the present east end of the same.'

22

In Illinois C. R. Co. v. Rucker, 14 Ill. 353, it was held that the company had the
right by its charter to locate its road over these premises, the city having
consented to such location. That was an application by the railroad company

for the condemnation of certain lands along the water front. The petitioner
alleged that the railroad had been located and was to be constructed in the
waters of the lake, along the margin, in front of the premises of the landowners,
and partly over the same. One of the defenses was that the corporation had no
power to locate its road in the waters of Lake Michigan, and that the premises
in question were a part of the harbor of Chicago and an encroachment thereon.
Counsel for the road took the position that the state had, by the express words
of the charter, given to the company authority to locate its road in the waters of
the lake. The opinion is very brief, and the report of the case unsatisfactory, but
the court did hold that the company had the right by its charter to locate the
road over the premises in question, the city having assented. In the case under
consideration the supreme court took the view that the controversy in that case
concerned only the 200-feet strip for the location of the main track; that no
question was raised or decided in regard to the right of the railroad company to
go beyond the 200-feet right of way, and take submerged lands for an engine
house or other purposes named in the charter. This is entirely true; at the same
time it is difficult to see wherein authority to take this 200-feet strip is
distinguishable from an authority to take such other submerged lands as are
necessary for the complete operation of the road. It is highly probable that, if
the case had been presented in the light of subsequent authorities, a different
conclusion might have been reached. It is sufficient to say of the Rucker Case,
however, that the city was no party to the litigation, having expressly consented
to the location of the main track, and that it is in no sense estopped by the
adjudication. It was entirely competent for the supreme court in the instant case
to take a different view of the law.
23

It would appear that, prior to 1869, other encroachments had been made upon
these submerged lands, and upon April 16, 1869, the general assembly by an
act condoned these encroachments, and declared that the right of the company
'under the grant from the state in its charter . . . and under and by virtue of its
appropriation, occupancy, use, and control . . . in and to the lands submerged,'
was confirmed, a procedure which seems to have been quite unnecessary upon
the present theory of the railroad company that it has a perpetual right under its
charter to take such submerged lands as were necessary for its complete
operation. McAuley v. Columbus, C. & I. C. R. Co. 83 Ill. 352.

24

The position here taken, that the grant of the railroad company did not include
the submerged lands along the lake shore, is not in conflict with the New York
cases, which related to submerged lands admittedly belonging to private parties.
In the principal case, Re New York C. & H. R. R. Co. 77 N. Y. 248, the
proceeding was for the condemnation of lands in the city of New York, along
the Hudson river, a large portion of which was under water. It was held that, so

far as they belonged to private parties, they might be condemned, but so far as
the lands formed a part of the streets and avenues of the city, the company
could not acquire title to them for the reason that they belonged to the city and
were for the benefit of the public, citing People v. Kerr, 27 N. Y. 188. It was
also held that, so far as respected the lands of private parties, the fact that they
were submerged made no difference. In Re Staten Island Rapid Transit Co. 103
N. Y. 251, 8 N. E. 548, it appeared that the statute authorizing the formation of
railroad corporations empowered them to acquire lands, under the right of
eminent domain, not only from individuals, but also from the state; but, as
observed by the court in the opinion, all questions as to the right of a railroad
company to acquire lands under navigable waters, as against the state, were
excluded from the controversy. In the case of Kerr v. West Shore R. Co. 127 N.
Y. 269, 27 N. E. 833, it was held that proceedings taken by the company to
acquire a right of way across plaintiff's lands were effectual to vest in the
company whatever title plaintiff had in the upland or in the land under the
waters of the river, but it was said in the opinion to be familiar law that the
shores of navigable rivers and streams, and the lands under the waters thereof,
belong to the state, and may be appropriated by the state to all municipal
purposes.
25

The grant of 'waters' in the second sentence of 3 is, as shown by the context,
still less decisive of an intent on the part of the legislature to make a general
grant of the waters of Lake Michigan. By the first sentence of this section
power is given to the corporation to appropriate land not exceeding 200 feet in
width through its entire length, and 'to enter upon and take possession of and
use all and singular any lands, streams, and materials of every kind for the
location of depots and stopping stages, etc., for . . . the complete operation of
said road;' and by the second sentence 'all such lands, waters, materials, and
privileges, belonging to the state, are hereby granted to said corporation for the
said purposes, . . . provided that nothing in this section contained shall be so
construed as to authorize the said corporation to interrupt the navigation of said
streams.' Obviously the words 'such waters' in the second sentence is limited to
the 'streams' specified in the first sentence, and power was given to the railroad
company to take possession of such streams for the purpose of constructing
bridges, dams, embankments, excavations, station grounds, etc., upon the
theory that the navigable streams of the state could not be bridged, diverted, or
encroached upon except with the express authority of the state. The object of
the section was evidently to confer such authority, subject, of course, to the
navigation laws of the United States. Escanaba & L. M. Transp. co. v. Chicago,
107 U. S. 678, 683, 27 L. ed. 442, 445, 2 Sup. Ct. Rep. 185; Illinois River
Packet Co. v. Peoria Bridge Asso. 38 Ill. 467; Chicago v. McGinn, 51 Ill. 266,
2 Am. Rep. 295.

26

The word 'streams' was evidently used to denote running waters, and is wholly
inapplicable to a body of water like Lake Michigan. Trustees of Schools v.
Schroll, 120 Ill. 509, 12 N. E. 243. That this was the intention of the legislature
is also evident from the proviso of the section 'that nothing in this section
contained shall be so construed as to authorize the said corporation to interrupt
the navigation of said streams.' The use of this word 'streams' was not only
intended to differentiate the waters of rivers from the waters of the lake, but
also has its bearing as tending to show that the word 'land' was used in the sense
of dry lands, or upland, as distinguished from submerged land. It is incredible
that, if the general assembly had intended to authorize the company to take
possession of submerged lands, as it found it necessary or convenient so to do,
it would not have employed more explicit language to that effect.

27

3. But even if the grant were as broad as claimed, and gave the company a right
to take parcels of submerged land, as it became necessary for its railroad
purposes, we are yet constrained to hold that it could not do so without the
consent of the common council The 8th section of the charter provides that
'nothing in this act contained shall authorize said corporation to make a location
of their track within any city, without the consent of the common council of
said city.' We see nothing in the act from which an intention can be inferred to
confine this proviso to the main track of the road, and agree with the supreme
court of Illinois that it included its depots, engine houses, and the necessary
track approaches to the same. Such seems to have been the practical
construction placed upon it by the city and the railroad company. If the
position of the company, that it applies only to the main track, were sound, it
would be possible for it, upon establishing the necessity for additional facilities,
to locate these engine houses and work shops in localities where they would be
an intolerable nuisance to the inhabitants; or perhaps miles distant from the
main line to which approaches would become necessary by tracks laid through
populous portions of the city, regardless of the wishes of its constituted
authorities.

28

It is also insisted by the company that this restriction applies only to the city as
bounded in 1851, at the date of the charter, and that as the southern limit of the
city at that time was Twenty-second street, no such consent is now necessary to
be obtained, though the boundaries of the city have long since been extended to
a point below the land proposed to be taken. Had the company signified a
desire to take possession of these lands before the limits of the city had been
extended, it is possible that it might claim a vested right to do so, though the
boundaries were subsequently enlarged; but the object of the provision was
evidently for the protection of cities in general, and not for the protection of
cities as they existed at the date of the charter. The road, as originally

constructed, ran through an almost uninhabited country, and yet a country

which gave promise of a large population and of great cities being built up
along the line of the road; and it is highly improbable that the growth of the
state should not have been foreseen and contemplated in this legislation.
Indeed, it is impossible to suppose that the legislature intended that the road, so
far as it passed through existing cities, all then insignificant, should be subject
to the will of the common council, but so far as it passed through cities that
might arise in the future, or existing cities whose boundaries would shortly be
englarged, it abdicated such power.
29

The case of Regina v. Cottle, 3 Eng. L. & Eq. 474, is pertinent in this
connection. A turnpike act, passed in 1840, and which was to be in force for
thirty-one years, provided that it should not be lawful to continue or erect any
turnpike gate across the roads in the town of Taunton, or in any other town
through or into which the roads might pass or be made. It was held that the
prohibition extended to the erection of a gate within the limits of a town as it
existed at any time during the operation of the act, and not merely at the time
when the act passed. Said Lord Campbell: 'We think that the legislature
contemplated the probable increase of Taunton within a period longer than that
generally assigned for a generation of the human race, and intended that its
inhabitants, as it increased, should be exempt from the annoyance of a turnpike
gate cutting off the free intercourse between neighbors in the same street. . . .
This construction is fortified by the reference to 'any other town through or into
which the said roads may pass,'meant, probably, to protect the inhabitants of
any new town which might spring up within the district while the act should be
in force.'

30

The case of People ex rel. Woodhaven Gaslight Co. v. Deehan, 153 N. Y. 528,
47 N. E. 787, is also apposite in this connection. In that case a grant by the
town authorities to an incorporated gas company of a power to lay conductors
'for conducting gas in and through the public streets and highways of said
town,' without any express limitation was held not to be restricted to existing
streets and highways, but to be construed as extending to such as were
subsequently enlarged, changed, or opened. In delivering the opinion the court
observed: 'When the right to use the streets has been once granted in general
terms to a corporation engaged in supplying gas for public and private use, such
grant necessarily contemplates that new streets are to be opened and old ones
extended from time to time, and so the privilege may be exercised in the new
streets as well as in the old. Such a grant is generally in perpetuity, or during
the existence of the corporation, or at least for a long period of time, and should
be given effect according to its nature, purpose, and duration.'

31

There is nothing in these cases in conflict with those of People ex rel. Chope v.
Detroit & H. Pl. Road Co. 37 Mich. 195, and Detroit v. Detroit & H. Pl. Road
Co.,1 43 Mich. 140, in both of which it was held that a toll gate, lawfully
erected upon land which was subsequently taken into the city, could not be
declared a nuisance by reason of the extension of the boundaries, and that the
same could not be abated without a violation of the Constitution.

32

In the case under consideration, however, no invasion of the right of property is

contemplated. The subjection of the railroad company to the will of the
common council deprived the company of nothing it before possessed, but
limited the exercise of a right which had not yet become vested and was still
subject to the police power. The question is really one of the intention of the
general assembly in incorporating this provision into the charter of the
company, and in view of the need of some control of this kind and the condition
of the country at the time the charter was adopted, we can have no doubt
whatever that the assent of the common council was intended to be required as
a permanent condition. Especially is this so in view of the insistence of the
railroad company that the power to appropriate these submerged lands is a
continuing one. In such case the condition upon which the power should be
exercised, namely, the consent of the common council, should also be
construed as continuous. In other words, the railroad company cannot assert the
power and in the same breath repudiate the condition.

33

In conclusion, we are of opinion that the decree of the Supreme Court of

Illinois was clearly right, and it is therefore affirmed.

5 N. W. 275.